County-run Landfills Ruled Illegal

Judge Puts 2 Dumps` Fate In Question

March 24, 1992|By Joseph Sjostrom.

A judge declared Monday that the Du Page County Forest Preserve District has no legal right to operate garbage landfills on public lands, and said he will hold hearings to determine if the public interest requires that the landfills be allowed to remain open beyond next year.

The ruling was issued by Circuit Judge John W. Darrah in a suit filed in 1990 by the Du Page County state`s attorney against the Forest Preserve District, which owns the land where the landfills are located.

FOR THE RECORD - Additional material published March 25, 1992:Corrections and clarifications.A story in March 24 Du Page editions about a court ruling in a suit against forest preserve landfills located in Du Page County incorrectly stated that the Settler`s Hill landfill in Kane County is owned by the Kane County Forest Preserve District. In fact, it is owned by KaneCounty. The Tribune regrets the error.

The landfills are in the Mallard Lake Forest Preserve, near Hanover Park, and in the Greene Valley Forest Preserve, near Naperville. The district`s operating contracts with Waste Management Inc. and Browning-Ferris Industries expire next year.

The suit seeks a court order closing the sites in June 1993.

Opponents of the landfill operations maintain the Forest Preserve Commission promised when the landfills were created almost two decades ago to shut the landfills in 1993. The district has maintained that the 1993 date was a goal, not a firm target. When the district opted to keep the landfills opens beyond 1993, the decision was greeted with a storm of protest from nearby resdients.

Darrah`s ruling said that although the district has been operating Greene Valley and Mallard Lake since 1974, it had no legal right to do so.

Units of local government have only those powers granted to them by the state Constitution or by the legislature, and no authority to operate landfills was ever granted to forest preserve districts, he said.

``. . . When the legislature intends to confer authority not already possessed by a unit of government, it does so with specific, clear, direct and unambiguous language. The absence of such language creating authority to maintatin a solid-waste landfill . . . leads to the conclusion that the legislature has not intended to so authorize the district,`` the order says.

That deficiency is not overcome by the various permits and orders concerning Greene Valley and Mallard Lake issued over the years by the administrative units of state government, such as the Environmental Protection Agency, the order says.

But the judge left open the possibility of siding with the Forest Preserve District on the basis of a legal doctrine that says a court can let some longstanding illegal operation remain in effect if opponents have not objected to it previously and if some harm to the public good would result from elminating it.

``It`s not over til it`s over,`` Richard Utt, the forest preserve`s director of government services, said of the ruling.

The two landfills represent 38 percent of the remaining landfill capacity in northern Illinois, according to Forest Preserve District officials. The Mallard Lake facility, covering about 240 acres, and the one at Greene Valley, covering some 210 acres, receive much of the waste generated in Du Page, as well as some from Cook County.

In Darrah`s 25-page opinion and order, he says the potential harm ``to the public generally,`` is at issue in determining whether the landfills should be closed. It appears to pit the general public`s interest in keeping the landfills open against the interests of people living near the landfills, who find them a nuisance and want them closed.

The ruling gave no hint of the weight the judge might give evidence or opinions from any of the various groups and interests competing for influence over landfill policy in the county. But legal observers said the district will be required to offer specific proof that the general public good will be harmed by closing the facilities in 1993.

Debbie Jacobson of Naperville, president of Citizens for a Healthy and Safe Environment, an outspoken group opposing the landfill operations, said the organization was encouraged by the ruling.

``We can prove quite thoroughly that there will be no harm to the public interest in closing the landfills,`` said Jacobson. Most members of her organization live near one of the landfills, and Jacobson said she lives about 1 1/2 miles from the Greene Valley facility.

A recent poll of Du Page County residents by the Tribune indicated that 33 percent of those surveyed disapprove of using the forest preserve for landfills, and 25 percent favor opening landfills elsewhere in the county. At the same time, only 6 percent said they favored paying more money to have their garbage hauled out of the county.

Darrah`s plan to hold hearings and make a ruling on the public interest issue could be delayed or derailed if the Forest Preserve District appeals his determination that the district has no legal right to operate landfills.

Richard Makarski, the district`s attorney, said he might ask the judge for permission to appeal that part of the order. He said he would have to read the order and consult with Forest Preserve District officials before deciding whether to appeal.

The decision could have an impact beyond Du Page. The Kane County Forest Preserve District, for example, owns the Settler`s Hill landfill near Batavia. If Du Page officials were to appeal any adverse ruling in their case to the Illinois Appellate Court and lose, that ruling could be enforceable in all of the 2nd Appellate District, which includes Du Page, Kane, and 13 other counties in northern Illinois.

Irene Stone, a Du Page County Board member from Lombard, said the future judicial action in the case could eventually force the county to adopt an alternative waste disposal plan, such as incineration.

``I`d like the county to move in the direction . . . of incineration, combined with resource recovery and also recycling of materials for which there is a market,`` said Stone, who attended the hearing.